DAR File No. 37463

Pardons (Board Of), Administration

Rule R671-517

Evidentiary Hearings and Proceedings

Notice of Proposed Rule

(Amendment)

DAR File No.: 37463
Filed: 03/29/2013 04:36:00 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to detail policies and procedures governing evidentiary hearings and proceedings.

Summary of the rule or change:

This amendment is intended to clarify of the language of the "Evidentiary Hearings and Proceedings" rule.

State statutory or constitutional authorization for this rule:

• Section 77-27-11
• Section 77-27-5
• Section 77-27-9

Anticipated cost or savings to:

the state budget:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to state government. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

local governments:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to local governments. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

small businesses:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to small businesses. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

persons other than small businesses, businesses, or local governmental entities:

Enactment of this rule amendment will have no fiscal impact and will impose no cost or savings to any other person. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

Compliance costs for affected persons:

There is no compliance cost for affected persons. The Board determined that there is no cost or savings because this rule is just a written articulation of an already-functioning internal Board procedure.

Comments by the department head on the fiscal impact the rule may have on businesses:

The Chairman of the Board of Pardons and Parole has considered this rule amendment, and finds that there is no fiscal impact on businesses because of this rule amendment. Interested persons may present their views on the rule pursuant to Division of Administrative Rules process and procedures. A public meeting was scheduled, noticed, and held regarding this rule amendment on Monday, 03/04/2013 at 8:00 a.m. No person attended the hearing to comment on this rule amendment, and no comments have been received by the Board.

Clark A. Harms, Chairman

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Pardons (Board Of)
AdministrationRoom 300
448 E 6400 S
SALT LAKE CITY, UT 84107-8530

Direct questions regarding this rule to:

• John Green at the above address, by phone at 801-261-6464, by FAX at 801-261-6481, or by Internet E-mail at jagreen@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/15/2013

This rule may become effective on:

05/22/2013

Authorized by:

Clark Harms, Chairman

R671. Pardons (Board of), Administration.

R671-517. Evidentiary Hearings and Proceedings.

R671-517-1. Evidentiary Hearings and Proceedings.

When a parolee has entered a not guilty plea to [an]a parole violation allegation [that parole has been violated ]and the [b]Board wishes to consider the allegation, the Board shall hold an evidentiary hearing unless the parolee has been convicted of a criminal charge and revocation is ordered [under]pursuant to Utah R. Admin. P. R671-518[, Conduct of Proceedings when Criminal Charge Results in Conviction].

 

R671-517-2. Confidentiality.

All hearings are open to the public, unless the Board decides that confidential information must be discussed. Only those portions of the hearing during which confidential information is discussed may be closed. [Confidential hearings shall be conducted as set forth in]See Utah R. Admin. R. R671-520.

 

R671-517-3. Notification.

The Board shall notify all parties of the time, date, and place of the hearing and of the disputed allegations[(s)]. [In this notification, t]The parolee shall be notified of [his or her]the right to be represented by an attorney of choice at the parolee 's own expense, or such counsel as may be provided by the Board. The parolee[notification also] shall also be informed [the parolee ]of the right to confront and cross examine witnesses, [(]absent a showing of good cause for not allowing the confrontation[)], and the right to present rebuttal evidence.

 

R671-517-4. Anticipated Witnesses, Documents and Other Evidence.

At least ten [(10)] days prior to the hearing, unless otherwise directed by the Board, each party shall provide to the [other]opposing party and to the Board a list of anticipated witnesses, documents, and other evidence to be submitted at the hearing, together with a summary of the relevance of each anticipated piece of evidence. Failure to comply with this rule may result in sanctions including, but not limited to, exclusion of the non-disclosed witnesses and evidence.

 

R671-517-5. [Presided Over by a ]Single Hearing Official[Board Member].

An evidentiary[The] hearing may be presided over by a single Board member or [a] hearing officer as the Board [c]Chair[person] designates. The hearing official[person presiding] may, sua sponte, or upon motion of either party, exclude evidence that is irrelevant, unduly repetitious, or privileged[ in the courts of Utah]. The hearing official[person presiding] may [further] take judicial notice of undisputed facts and may rule on motions [offered]made prior to or[ pending] during the hearing.

 

R671-517-6. Department of Corrections Bears Burden of [Evidence]Proof.

The Department of Corrections bears the burden of establishing a parole violation by a preponderance of the evidence. All testimony shall be given under oath. [Strict]The Utah R[r]ules of [e]Evidence do not apply. Hearsay evidence is admissible and shall be given such weight as the [person presiding]hearing official considers appropriate; however, no finding of guilt shall be based solely on hearsay evidence, except where such evidence would be otherwise permitted in a court of law. [The Fourth and Fifth Amendment] E[e]xclusionary rules and case law do not apply to parole revocation hearings.

 

R671-517-7. Opening Statements.

At the hearing, each party may make a brief opening statement, beginning with the State. After opening statements, the State [presents its evidence]has the burden of presenting evidence of parole violation. Upon conclusion of the State's case, the parolee may present evidence in response. If the parolee, [in his or her]as a defense, raises issues not adequately addressed by the State's case in chief, the [person presiding]hearing official may allow the State to present rebuttal evidence in response[ to that issue]. Upon conclusion of all evidence, the [person presiding]hearing official may allow each party to make a brief closing argument.

 

R671-517-8. Written Submissions.

Any brief or legal memorandum submitted to the B[b]oard as part of an evidentiary hearing shall be [delivered to the board]filed at least ten [(10) ]calendar days prior to the hearing, and shall include proof of service on the opposing party. The opposing party shall[may furnish] file any[its] written response [to any such submissions] no later than three [(3) ]calendar days prior to the hearing. [Such]Written submissions shall be no longer than ten [(10) ]double-spaced, typed pages, excluding exhibits. Either party may petition the hearing official for permission to exceed these length requirements or shorten these time requirements, and the decision whether to allow this shall rest in the sole discretion of the hearing official.

 

R671-517-9. Continuances.

1. All requests to continue a scheduled evidentiary hearing shall[ ]: (a) be submitted to the board in writing, at least seven [(7) ]calendar days prior to the scheduled hearing[,]; and (b)[shall] contain either a stipulation of the parties, or a statement of why there is an extraordinary need for continuance and why such a continuance will not prejudice the interests of the other [side]party.

2. The decision to grant or deny a continuance rests in the sole discretion of the hearing official.

3. In the event a continuance is granted, each party shall be responsible for notifying its own witnesses.

 

KEY: parole, evidentiary, hearings

Date of Enactment or Last Substantive Amendment: [October 25, 2007]2013

Notice of Continuation: February 15, 2013

Authorizing, and Implemented or Interpreted Law: 77-27-5; 77-27-9; 77-27-11